Justice Souter's explanation of Constitutional judging

Retired Justice David Souter spoke at the Harvard University commencement recently after receiving an honorary degree.

He shared a very important challenge to the notion that the Supreme Court can and should always decide cases simply by fairly reading the words of the Constitution, and knowing what the men in Philadelphia in September 1787 intended. Simple.

I think there are quite a number of things wrong with that "original intent" claim, even though it is very appealing.

However, on its face, I like the idea that the Constitution does not change unless it is amended. For me the most powerful instance of the improper evolution of the meaning of the Constitution has been the reworking of the commerce clause, Article I, section 8, clause 3

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

This clause is the constitutional foundation of the Controlled Substances Act, and the meaning of this clause, or the extent of its reach, was the issue in the case of Gonzales v. Raich. In that case, a seriously ill California woman who used California-grown marijuana successfully to treat her life-threatening maladies, upon the recommendation of her California doctor, pursuant to California law sued the Attorney General to enjoin the Justice Department from prosecuting her and her caregivers who grew marijuana for her in California without any compensation. She said that the circumstances of her marijuana possession were not commerce and were not commerce with a foreign nation, an Indian tribe or among any states.

In advance of the argument in Raich, I moderated a forum on the case sponsored by the SSDP Chapter at Georgetown University Law Center and read all of the many briefs filed in the case. You could not call her possession and use of marijuana "interstate commerce" if there were no money involved and no other states involved. With these facts, her circumstances were outside Congress's constitutional power to regulate. I was convinced that it would be wrong to apply the interstate commerce clause to Angel Raich.

But the Supreme Court ruled against Angel Raich in a six to three decision. The dissenters were Justices O'Connor and Thomas, and Chief Justice Rehnquist. The majority explained that to effectively regulate the true interstate commerce in marijuana, Congress needed the authority to regulate any commerce that might have some effect on that commerce. Allowing all the Angel Raich's of California to obtain and use marijuana would have an impact on the other interstate and foreign commerce in marijuana, even if their use were to reduce that illegal commerce.

I was disappointed and acquired a greater sympathy to the original intent argument.

However, as Stanford historian Jack Rakove has observed, to understand the original intent of the Constitution, you need to look at the volumes of writing that accompanied the arguments in each state on whether to ratify the Constitution. And he notes that the meanings began to change. You need to read not only James Madison's Journal of the Constitutional Convention, and the Federalist Papers of Madison, Hamilton and Jay who supported the Constitution, but the arguments of those against the Constitution. And then you need to read the first court opinions that attempted to interpret the Constitution.

As Justice Souter points out very effectively in his speech, the Solicitor General in the Pentagon Papers case of 1971, when faced with the simple words, "Congress shall make no law," effectively argued that nevertheless that Congress can indeed make a law.

But interpreting the "meaning" or "intent" that a legislative body had when enacting a law is a necessary but tricky business. I spent nine years writing law as staff to the U.S. House of Representatives. In some instances the words in the law are words I chose. In many instances, most Members of Congress had no idea about the details of the law. I was on the Hill in the era in which computers were introduced. Thus staff had the ability to generate enormous bills on behalf of the Congress with thousands of provisions that appeared to be seamlessly harmonious. The old technology of scissors, tape, typewriters, pens and pencils was largely abandoned in the processing of amendments.

I like the idea that judges look at the words, but I know that too often the word choice was accidental.

I wonder to what degree, in the crunch to get opinions completed in the hours before the Supreme Court adjourns, the wrong word or phrase gets used.

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